a blog about sexuality, gender, law and culture

30 posts from July 2008

July 31, 2008

Two years ago, in what the Boston Globe called "a stunning turn of events," the Catholic Charities of Boston announced that it would cease its adoption services, which had been its founding mission, rather than comply with a Massachusetts law prohibiting it from refusing to serve gay adoptive parents. The agency acted on the basis of a declaration by the Vatican in 2003 that described gay adoptions as "gravely immoral."

It what seems now like an equally stunning turn of events, but in the opposite direction, the largest Catholic adoption agency in Britain has decided to comply with a similar law and to place children with same-sex parents. The Church had originally threatened to close the adoption agencies, but apparently a split has developed, with a different Catholic agency in litigation seeking an exemption.

The largest Catholic adoption agency in England and Wales has decided to implement an adoption policy that does not rule out same-sex couples in the face of new laws that forbid such screening. The change in its adoption policy was made with the full support of the bishops who oversee the agency.

The decision, made by the Catholic Children’s Society of Arundel and Brighton, Portsmouth and Southwark (A&BSP) means the society will not turn away any homosexual couples who present themselves as potential adopters.

Terry Connor, chief executive of the society, explained to The Universe that any changes would not start until January and were a direct result of the recent Sexual Orientation Regulations which enforced “rights” for same sex couples who wish to adopt.

... In January 2007, Cardinal Cormac Murphy-O'Connor wrote to the-then Prime Minister Tony Blair suggesting that Catholic adoption agencies in England and Wales would be forced to close down if they were not allowed to opt out of new gay rights laws, which he said contradicted Catholic teaching....

In the cardinal's Westminster archdiocese, the Catholic Children's Society has opted to mount a legal challenge to the regulations by amending its constitution. But A&BSP, which prepares between 40-50 potential adoptive parents a year, has instead decided to comply with them....

The draft of the official ballot arguments from each side have just been made public for Prop 8 in California, the proposal that would take away the right of same-sex couples to marry. You can read them here (scroll down to Prop 8). Its proponents have come up with a new - and I think potentially effective (although misleading) - argument that seeks to fill the enormous gap that their claims have always had: their failure to persuade people that allowing gay couples to marry would harm anyone else. After invoking the traditional definition of marriage and "the outrageous decision of four activist judges" who formed the majority in the California Supreme Court decision, the pro Prop 8 argument asserts that it would "protect our children from being taught in public schools that 'same-sex marriage' is the same as traditional marriage." It then characterizes the public school curriculum (that presumably is soon to be the status quo) as "teaching our kids that gay marriage is okay." The rebuttal argument asserts that no child can be forced, against the will of their parents, to be taught anything about health and family issues - in other words, California law provides parents the right to exercise an opt-out for their children from the family/health curriculum.

Backers of a November initiative to ban same-sex marriage in California plan to tell voters in the state ballot pamphlet that the constitutional amendment would protect children as young as kindergarten age from being taught in school about the virtues of gay and lesbian matrimony....

...[O]pponents of the measure will decide by next week whether to sue, which is the only way a ballot argument can be changed before the election.

The state Department of Education recommends that marriage be discussed in high school, but each school district designs its own program, with parental input, said [Shannon] Minter, legal director of the National Center for Lesbian Rights. ...

July 30, 2008

Massachusetts will soon become the second state in which non-resident same-sex couples can marry. One reason the 2004 Goodridge decision has had relatively little spillover effect, legally, around the country is that a 1913 state law prohibited marriage in Massachusetts by out-of-staters if their marriage was not allowed under their home state's law. It was a left-over from the era of anti-miscegenation laws, part of a wave of statutes enacted in the wake of a national scandal over the marriage of African-American boxer Jack Johnson and a white woman. Hmm... reactionary panic after public transgression of sexualized social hierarchy produces repressive laws that legislators even decades later are gunshy about repealing -- seems like I've heard that story somewhere else ...

The
bill to repeal the 1913 law is on its way to Governor Deval Patrick,
who [has announced that he] will sign it into law. The bill cleared a
final hurdle Tuesday afternoon, when the House of Representatives
passed the bill on a roll call vote after about 45 minutes of debate.
The vote was 118-35, with five members not voting....

Meanwhile, employers are finding that it's a lot more efficient to just go ahead and extend marital benefits to same-sex couples rather than to have two systems. Only problem is -- they can't. Under DoMA, federal tax provisions prevent a simple unitary model, because recognition of s/s marriages is prohibited for purposes of any federal law.

So, what's shaping up here is the business case for recognizing s/s marriages on the same terms as other marriages. Within a few years, this ought to include business support for repeal of at least Section 3 of DoMA. The California energy utility PG&E has just donated $250,000 to the campaign to stop Prop 8, which would amend that state's constitution to bar s/s marriage. If that initiative is defeated, as early polls indicate is likely, the next stop for the <business reason for non-discrimination> argument is Congress.

As a non-native but devoted immigrant New Yorker (ok, now awol), hearing others snidely diss how "unliveable" or "dirty" the city was always burned me. Not because a sane person couldn't hold those opinions, but because the ease with which they were accepted as conventional wisdom seeped like slime into code words for NYC being too non-white, too non-straight, too non-Christian. Perhaps it's because I grew up in a small town, but my perception of those jabs at New York has always been inflected with a sure sense that I knew what most of the people in non-urban America were really saying when they dissed NYC.

The more explicitly anti-gay version of the old NYC-is-too-dirty refrain is "San Francisco" whatever (Democrat, values, etc.) Republican hacks and their media lackeys routinely use the phrase "San Francisco Democrat" as a snarky way to describe Nancy Pelosi's philosophy as well as her home district; I guess it's their version of a double entendre. Barack Obama and Al Gore and probably every other modestly progressive Democrat have also drawn the same epithet.

... "San Francisco values to me means that every child in our city has health insurance until they are 25 years old. San Francisco values say we don't have a minimum wage, we have a living wage. In San Francisco we respect the dignity and worth of every person, and respect is the order of the day there. Issues like protecting the environment aren't issues for us -- they are values and ethics."

... To be classified as a New Old Gay requires more than an appreciation of Patti LuPone, though love of somewhat tragic, just a tad grotesque, totally fabulous divas is a requirement. In some ways the New Old Gay can be read as a reassertion of a gay identity that had all but been given up for dead: If gays can be married and have children and live contentedly in the suburbs, or on the other end of the spectrum, do the same drugs at the same loft parties as their Oberlin classmates, and if everyone thinks AIDS is no more serious than diabetes, then, really, what’s the difference between the gays and the straights? By dialing back to and reinventing the old gay stereotypes, they may have the best shot at reclaiming gayness as something actually different.

It’s akin to the ways in which identity politics have played out for various minorities and ethnic groups; everyone makes this huge effort to assimilate, and then, after 10 or 20 years or so, they realize: It’s boring!...

July 28, 2008

In a new sequel to the Supreme Court’s ruling that for the first time allowed a ban on a method of abortion, the Fourth Circuit Court agreed on Monday to reconsider the constitutionality of Virginia’s five-year-old prohibition on abortion by the so-called “partial-birth” method. That law has never gone into effect, since it was successfully challenged immediately. In seeking a new review, the state of Virginia asked the 11-member en banc Court to rule that abortion laws may not be challenged before they actually go into effect – a ruling that has the potential to affect abortion cases well beyond Virginia.

The Supreme Court majority, in the 5-4 ruling in Gonzales v. Carhart in April 2007, sought to discourage such so-called “facial attacks” on abortion laws, but in the end said it did not need to resolve the debate that has persisted for years over that question.

That question was one of three the state of Virginia raised on June 2 in asking the Circuit Court based in Richmond to reconsider a split panel decision on May 20 striking down in its entirety the 2003 Virginia “partial birth infanticide” law. The panel had reconsidered an earlier ruling against the law, after the Supreme Court told it to take into account Gonzales v. Carhart.

In an order supported by a majority of its judges, the Circuit Court granted rehearing before the full bench, and tentatively set the case for oral argument in the last week of October. Only if the Circuit Court moved very rapidly could the case be decided in time to get it before the Supreme Court for decision in its next Term that starts Oct. 6.

In seeking rehearing, the state argued that the Supreme Court has already “cast serious doubt on the viability of facial challenges…in the abortion context” when the claim is that an anti-abortion law sweeps too broadly. Quoting language from the Carhart opinion, the state interpreted the Court to have said “in other words” that “the principles of judicial restraint require federal courts to adjudicate the constitutionality of abortion statutes on a case-by-case basis, not to make broad pronouncements regarding litigants and circumstances not before the court.”

In addition to that argument, the state said rehearing was necessary in the case of Richmond Medical Center v. Herring (Circuit docket 03-1821) in order to reinterpret the state ban in such a way that it would not make it a crime to perform the banned procedure, if doing so had been an accident rather than an intentional act. And, the state said, rehearing was necessary to avoid nullifying the state’s ban altogether, by limiting a remedy simply to lifting the ban only for cases of accidential violations.

Challengers of the ban, in their response on June 20, argued that the Supreme Court’s 2007 decision did not cast doubt on facial challenges to abortion laws. That ruling, the response said, “merely confirms a longstanding principle of constitutional adjudication — that [a challenger] cannot prevail on a facial challenge with evidence that is speculative.”

The response also argued that only one Circuit Court — the Fifth — has ruled that abortion laws cannot be challenged before they take effect (that is, “facially”) unless there are no circumstances in which the law could be validly enforced. By contrast, eight other Circuit Courts have refused to apply that rigorous test to abortion laws, that brief said.

The response also contended that there is no way a court can narrow the scope of the Virginia law without actually rewriting it, and thus “complete invalidation” is the only remedy after a finding that the ban sweeps too widely.

Only one other federal appeals court — the Sixth Circuit Court — has ruled on a “partial-birth” abortion ban in the wake of the Supreme Court’s 2007 decision. The Sixth Circuit on June 4 of last year nullified a ban adopted by voters in Michigan. The state and a private advocacy group were denied review of that case by the Supreme Court on Jan. 7, although both appeals sought to raise only procedural issues, not the validity of the Michigan law. The cases were STTOP v. Northland Family Planning Clinic (07-291) and Cox v. Northland Family Planning Clinic (07-313).

(NOTE: The Virginia petition for rehearing and the response to it can be found on the Fourth Circuit’s website by those with access to the PACER document system. The petition is document number 194 and the response is docket number 197. The now-vacated panel opinion is docket number 192.)

Meanwhile, Australian educators have had a eureka moment - why not develop programs that teenagers might actually take seriously, because they provide genuinely helpful information and counsel? What a concept.

...[R]ecently in Australian schools, researchers put together a groundbreaking sexual health program for 16-25 year olds. Associate Professor Moira Carmody from the University of Western Sydney's Social Justice and Social Change Research Centre did something totally shocking: She asked teens what they needed from their sex ed programs. Carmody interviewed young people about their sexual activity, experiences and concerns. Instead of telling them that sex is bad or sinful or that you can catch AIDS from a public library computer someone once used to look at porn, she used the kids' feedback to create a six-week program, subsequently run in six communities in Sydney and regional New South Wales....

Here, no one asks kids what they're experiencing and what information they could use to help navigate decision-making in sexual situations. What's worse, according to the curriculum content guidelines for funding recipients, the required federal sex ed states that: ...

"The curriculum must have a clear message regarding the importance of student abstinence from sexual activity until marriage and must emphasize that the best life outcomes are more likely obtained if an individual abstains until marriage. Throughout the entire curriculum, the term 'marriage' must be defined as 'only a legal union between one man and one woman as a husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife.' (Consistent with federal law.) The curriculum must teach the psychological and physical benefits of sexual abstinence-until-marriage for youth. Information on contraceptives, if included, must be age-appropriate and presented only as it supports the abstinence message being presented. Curriculum must not promote or endorse, distribute or demonstrate the use of contraception or instruct students in contraceptive usage." ...

The American Civil Liberties Union, tired of the Department of Health and Human Services ignoring repeated warnings about incorrect data, sent the department a letter threatening legal action. The ACLU is currently trying to get the DHHS to stop disseminating incorrect information — because doing so violates federal law....

July 27, 2008

For a highly regarded scholar of family law, Nancy Polikoff (AU) is amazingly engaged as an activist -- which is to say, she actually takes on major projects and does them, rather than simply describing herself as an activist. Currently, she is pressing the DC City Council to amend that jurisdiction's law on alternative parenting. She's posting the back story on her blog:

... The last major area that needs law reform [in DC] concerns the status of couples having children together. So it's logical that we pass legislation that will give DC what California, Connecticut, Massachusetts, New Hampshire, New Jersey, Oregon, and Vermont already have -- a presumption that a child born to one domestic partner is the child of the other.

DC is also one of a minority of states with no statute on donor insemination. Many of those statutes are old and apply only to married (heterosexual) couples, but the modern statutes apply to all women. The best framework does two things: it says that when two people (married/registered or not) decide to have a child using donor insemination and both intend to raise the child as their own, then they are both the parents of the child; and it says that a semen donor is not a parent unless there is a written agreement to the contrary.

Legislation recently introduced in the DC City Council accomplishes these goals. So imagine the shock of the legislation's supporters when the DC Office of the Attorney General sent a letter -- but no witness -- to the July 11 hearing on the bill. The letter reflected complete ignorance about families headed by same-sex couples, about reproduction using assisted conception, and about the laws in other states. The OAG didn't know that the Social Security Administration recognizes a parent-child relationship between a child and her nonbiological mother who was in a Vermont civil union with the biological mother when the child was born, even though the Washington Post had an editorial about the case days before the letter was written! .... [more at the link]

Big money kept changing hands this week for and against Proposition 8, the proposed constitutional amendment to ban same-sex marriage.

Piedmont philanthropist and Obama fundraiser M. Quinn Delaney on Tuesday gave $50,000 to the campaign opposing the measure — she runs the Oakland-based, anti-racism Akonadi Foundation; is vice-chairwoman of the American Civil Liberties Union of Northern California; is on the Tides Foundation’s board of directors; and is married to real estate investor/developer Wayne Jordan.

Focus on the Family — the Colorado Springs, Colo.-based evangelical Christian organization led by James Dobson — on Tuesday gave $20,000 to the campaign for Prop. 8.

Garden Grove-based Container Supply Co. on Tuesday contributed $25,000 to the campaign for Prop. 8; the company’s president is former state Senate Republican Leader Rob Hurtt.

FamilyIQ.com founder Mark Hobbins — formerly, a cofounder of the Aspen Education Group, which operates boarding schools and boot camps for troubled teens — of Trabuco Canyone on Wednesday gave $25,000 to the campaign for Prop. 8.

Those opposing the amendment on Tuesday moved $1.25 million from the Equality California campaign fund into the “No on 8 — Equality for All” campaign fund.

And on Monday, as previously noted here, the Tupelo, Miss.-based American Family Association gave $500,000 to the campaign for Prop. 8, the biggest single contribution to the campaign to date.

July 26, 2008

By Sue Horton, Los Angeles Times Staff WriterJuly 25, 2008PROVIDENCE, R.I. -- On the morning of May 26, 2004, Cassandra Ormiston and her long-time partner Margaret Chambers arose early, hopped in the car and raced across the border into Massachusetts.

Then-Gov. Mitt Romney, a staunch opponent of same-sex marriage, had already ordered some Massachusetts cities to stop issuing marriage licenses to gay couples who lived outside the state, and Ormiston and Chambers hoped to get to nearby Fall River before the ban took effect there.

By afternoon, they were married....

When, after two years of marriage, the 10-year relationship soured, Chambers filed for divorce. That put the couple into a legal limbo that is becoming increasingly common as same-sex couples married in one state try to divorce in another.

A judge in Family Court, where divorces are handled, asked the Rhode Island Supreme Court for a ruling on whether his court had jurisdiction, given that Rhode Island doesn't recognize gay marriage. The state Supreme Court decided that the women weren't legally married in the eyes of the state and therefore couldn't get divorced.

Chambers then tried filing for divorce in the state's Superior Court, but last month a judge there ruled that the court had no jurisdiction over marriage dissolutions. A Massachusetts divorce isn't an option because only residents who have lived in the state for a year can file there. ...

Around the country, same-sex couples are discovering that getting divorced can be far more complicated than getting married. ...[E]ven in Massachusetts and California, where married gay couples have the same right to divorce as heterosexual couples, a clash between federal and state laws makes the process anything but equal.

* If a judge orders a heterosexual couple to divide a pension during a divorce, federal law allows the pension to be divided without triggering early-withdrawal penalties. Divorcing gay couples must pay the penalties.

* Court-ordered alimony payments can be deducted from federal income taxes in straight divorces, but not in same-sex divorces.

* In gay divorces, when a judge orders one party to give money or other assets to a spouse, those assets may be subject to gift or income taxes.

* When real property is transferred from joint ownership to one gay spouse by a court order, capital-gains taxes are often triggered. ...

Boston attorney Jo Ann Citron, who has handled gay divorces in Massachusetts and New York, said couples seldom anticipate divorce when they marry. Nevertheless, she said, "the single most important benefit of marriage is divorce . . . a predictable process by which property is divided, debt is apportioned and custodial arrangements are made for children."...

July 24, 2008

Historian Christopher Phelps, of the Ohio State University at Mansfield, has discovered an article on "Socialism and Sex" written for the 1952 bulletin of the youth section of the Socialist Party. Articles by Phelps and a number of leading historians discussing its significance, as well as the text of the 1952 document, appear in the summer 2008 issue of New Politics.

[Phelps argues that] the article "Socialism and Sex" "prefigured the 1960s. It urged socialists to understand the genesis of political commitment and their ultimate goals in a capacious sense, transcending narrow economic terms. It treated sexuality as a political issue, comprehending the interrelationship between personal and public in a manner strikingly similar to the subsequent feminist position that 'the personal is political.' While the scant intellectual resources available to a young person exploring such questions in the early 1950s lent the article a modest temperament, the document contains in embryonic form the admixture of socialism and gay liberation that would find more militant, revolutionary expression in the post-Stonewall explosion of such groups as the Gay Liberation Front. For all these reasons, 'Socialism and Sex' is a document of great significance in the larger sexual history of the political left... It stands as an arresting forerunner of modern gay civil rights consciousness."

Moreover, in a series of interviews with YPSL and Socialist Party activists from the 1950s, Phelps discovered that the Party came very close to adopting a homosexual emancipation plank in its platform at its 1952 convention. The chairman of YPSL at that time was Vern Davidson, a UCLA senior who had had several same-sex affairs, including with other Party members, and who, he told Phelps, "was instructed by the YPSL to attempt to put a homosexual rights plank before the platform committee." ...

Davidson told Phelps he tried and tried to draft an appropriate platform plank but "I just couldn't write anything that seemed to fit into the platform. So I let it slide by. I had no guidance. We didn't talk about 'discrimination based on sexual orientation' in those days. That phrase would never have come to me. And everything was going fast, we were fighting over the [Korean] war and everything, and it didn't get done. And I take responsibility. But I believe to this day, had I been able to do my job, [Norman] Thomas [then leader of the Socialist Party] would have joined me, and we would have had it back then, in '52."

But the 6-foot-tall, 250-pound mail carrier from Lacey, Wash., doesn't worry about anyone questioning his virility, or ogling his bare knees. He just wants to feel as free as a woman wearing a skirt....

Peterson is on a one-man mission to persuade his colleagues to approve a change in their strictly regulated uniforms. He has proposed a resolution to allow mailmen to wear kilts, which he calls a Male Unbifurcated Garment, or MUG....

"MUGs are worn all over the world, and have been for thousands of years because they are comfortable," he wrote to fellow mailmen. "Unbifurcated Garments are far more comfortable and suitable to male anatomy than trousers or shorts, because they don't confine the legs or cramp the male genitals the way that trousers or shorts do."... Women [mail carriers] can wear skirts....

[Paul Lunde has occasionally worn a MUG at work.] Some of Lunde's co-workers have accused him of cross-dressing. ... "They're mostly ribbing me, but occasionally there are people who appear to be offended," said Lunde, 38, who has delivered mail in Salem, Ore., for nine years. "I say, 'Show me a picture of Jesus in slacks, and I'll consider it.' "...

July 23, 2008

It’s no secret that law school administrators cater to the ranking methodology of the mighty U.S. News & World Report. To date, one way to keep your ranking up has been to admit students with sub-par LSATs and GPAs into the part-time program only, since those students’ so-called entering credentials will then be excluded from the U.S. News rankings calculus.

But now U.S. News is considering revising that calculus to include part-time students’ entering credentials. And that news, at least for one dean, is reason enough to say, well, enough!

Writes Case Western Dean Gary Simson in today’s NLJ: “I propose that law school faculties and administrations treat the announcement as a wake-up call and recognize how much they have allowed themselves to be at the mercy of editors whose primary interest is selling magazines, rather than providing a means of ranking schools that actually might promote the things that make for genuine greatness in a law school.”

[Yesterday] the Third Circuit struck down a federal Internet censorship law as unconstitutional. The law, called the Child Online Protection Act, imposed civil and criminal penalties on those who place “harmful to minors” material on the Web. ... The law would have forced vast swaths of constitutionally protected speech off of the Web.

Today’s victory is a huge win that comes as a result of 10 years of litigation by a dedicated group of ACLU clients. All of our clients—from award-winning, established publications such as Salon to individuals such as Heather Corinna, who works largely on her own to provide valuable sexual health information geared toward teenagers—put up with a great deal of hassle and inconvenience and stress. By standing up for their own right to engage in free speech on the Web, they helped protect the rights of all Americans. They deserve our thanks.

Whether today’s opinion is the last to address COPA is up to the government and, ultimately, to the Supreme Court. The government has some time to decide whether it wants to ask the Court to review this case. Hopefully it will conclude that 10 years of litigation is enough. ...